To brie or not to brie, that is the question (for the EU)!
On 14 June 2017, the European Union Court of Justice (CJEU) handed down a preliminary ruling that milk products, including cheese, yoghurt etc. cannot be named as such where they do not contain the animal product. Therefore, companies that sell “soya-milk” and other such products, will no longer be allowed to market these products as “milk” products – the impact of this decision will extend to cheese, yoghurt and other products that contain milk.
In recent years more and more non-dairy cheeses and vegan cheeses (and other non-dairy products) have been appearing on our supermarket shelves – the issue is whether they can be described as cheese, particularly when cheese is defined in most dictionaries (and historically), as a product made from the pressed curds of milk.
This matter was referred to the CJEU for a preliminary ruling by the German national court (Landgericht Trier) to interpret Article 78 of Regulation 1308/2013 and resolve a dispute between VSW – a German association whose responsibilities include combatting unfair competition – and TofuTown – a company which produces and distributes vegetarian and vegan food products.
VSW claimed TofuTown was infringing German competition law, as well as the EU Regulation by labelling and marketing its plant-based food products under names such as “Tofu Butter” and “Veggie Cheese”. TofuTown counter-claimed that its advertising of the plant-based products did not infringe EU law because consumer understanding of such product descriptions has moved on in recent years. TofuTown made it clear that it does not use terms such as “butter,” “cheese,” or “milk” in isolation but always with words referring to the plant-based origin of the product and therefore the products would not cause confusion.
The CJEU examined whether Article 78(2) and Annex VII, Part III of Regulation 1308/2013 must be interpreted as meaning that they preclude the use of the term “milk” being used to describe a plant-based product. It held that “milk” cannot be used to describe a plant-based product as the meaning of “milk” is “an animal product” and terms such as “milk,” “cheese,” “cream,” or “butter” are reserved for milk products i.e. those derived from animals and not plant-based alternatives.
The CJEU disagreed with TofuTown’s submissions that consumers would not be confused with the marketing and labelling of the plant-based products due to the fact that they contained wording referring to their plant-based origin.
In making its decision, the CJEU is seeking to protect consumers and ensure that conditions are maintained to allow fair competition within the market. The decision that “milk” products can only be described as such where they come from the animal product, seeks to promote these goals. Limiting the designation of such products was deemed necessary by the CJEU to allow the proper identification of actual milk-based products.
National courts now have to implement the preliminary ruling issued by the CJEU and will be bound to apply Article 78 of Regulation 1308/2013 strictly. As a result, organisations will no longer be able to sell products marketed and labelled as “tofu-butter” or “soya-milk” where the products do not contain animal derived milk products.
What about peanut butter, salad cream and coconut milk?!
There are a number of exceptions to the Regulation which are contained in Commission Decision 1234/2007 which include:
- coconut milk;
- cream filled biscuits (e.g. custard creams etc.);
- salad cream;
- nut butters (e.g. peanut butter);
- butter beans; and
- cream or creamed soups.
These products will not be affected by the CJEU preliminary ruling in this case.
However, other similar products, will have to be re-branded to remove references to “milk,” “cheese” or “cream” where they do not contain any animal derived milk product.
How will this impact the vegetarian and vegan food market?
The vegetarian and vegan food market has grown exponentially over the last 10 years. The alternative dairy drink sector is expected to continue to grow in 2018 generating over US $16 billion globally in revenue and therefore, this preliminary ruling has a very significant impact with regard to the labelling and marketing of hundreds of consumer products.We wait to see if this CJEU decision is appealed or challenged in the future.
Alexander Anton, secretary general of the European Dairy Association said the decision was “a good day for dairy.” However, the Vegan Society has criticised the ruling as unreasonable, saying, “how likely is it that someone buys a carton of soya milk and thinks it is dairy milk?”
We wait to see if this CJEU decision is appealed or challenged in the future.
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